Professional Services Addendum

These professional services terms and conditions (the “Professional Services Terms”, and together with (as applicable) your Order Form, the Terms, and Support Services Addendum, the “Agreement”) are a binding agreement between you (“you” “or “Customer”) and Prophecy (“Prophecy”, “us” or “we”) governing your use of the Prophecy Professional Services ordered on your Order Form. The Terms are hereby incorporated into these Professional Services Terms. Prophecy reserves the right to amend, discontinue, limit, disable, terminate, or cancel any feature of the Prophecy Professional Services at any time. All Professional Services engagements must explicitly refer to a signed as accepted statement of work (SOW) including clear definition of all deliverables.

1. Professional Services Generally

1.1 Description. Prophecy may perform consulting, application, training, integration, implementation and other professional services (the “Professional Services”) for Customer as set forth herein and as expressly paid for under an Order Form. Prophecy shall determine the manner and means of performing the Professional Services and shall use commercially reasonable efforts to perform the Professional Services in accordance with this Addendum. Notwithstanding the foregoing, Customer acknowledges and agrees that the schedule herein is an estimate only and is subject to change as the Professional Services proceed.

1.2 Customer Assistance. Customer shall provide Prophecy with such resources, information and assistance as Prophecy may reasonably request in connection with the performance of the Professional Services. Without limiting the generality of the foregoing, in the event the Professional Services are provided on Customer’s premises, Customer shall provide safe and adequate space, power, network connections, materials, secretarial assistance, CPU time, access to its hardware, software and other equipment, assistance from qualified personnel familiar with Customer’s hardware, software and data processing requirements and other resources as reasonably requested by Prophecy, whether requested during regular business hours or otherwise. Customer acknowledges and agrees that Prophecy’s ability to successfully perform the Professional Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance requested. Prophecy shall have no liability for deficiencies in the Professional Services resulting from the acts or omissions of Customer, its agents or employees or performance of the Professional Services in accordance with Customer’s instructions.

1.3 Customer Materials. Customer acknowledges that in order to perform the Professional Services, Prophecy may require access to certain Customer software or other information or material of Customer or Customer’s suppliers (“Customer Materials”). Accordingly, except to the extent prohibited under any third-party license from Customer’s suppliers, Customer hereby grants to Prophecy a non-exclusive, non-transferable license to use the Customer Materials as necessary for Prophecy to perform the Professional Services.

1.4 Professional Services. The parties understand and agree that any and all work product (the “Work Product”) which is produced as a result of the Professional Services performed by Prophecy under this Agreement shall be the property of Prophecy, unless expressly agreed in writing by the parties otherwise. Prophecy shall retain all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights in any and all tools, routines, programs, designs, technology, ideas, know-how, processes, formulas, techniques, improvements, inventions and works of authorship which are made, developed, conceived or reduced to practice by Prophecy or its consultants (a) prior to this SOW; (b) separately or jointly with Customer in connection with this Agreement and which have general applicability apart from the Work Product and any derivative works thereof; or (c) outside of this SOW (collectively, the “Prophecy Property”). Provided that Customer is not in breach of any material term of this Agreement or a Statement of Work, during the term of this Statement of Work, Prophecy grants Customer a non-exclusive, non-transferable license, without rights to sublicense, to use the Prophecy Property that is incorporated into deliverables delivered pursuant to a Statement of Work (each, a “Deliverable”), solely for Customer’s own internal business purposes in connection with the use of the Deliverable during the term of this Agreement. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement prohibits Prophecy from utilizing any skills or knowledge of a general nature gained or created by Prophecy during the course of providing the Professional Services, including without limitation information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Prophecy.

2. Professional Services Fees.

2.1 Fees. In consideration of the rights granted and services provided by Prophecy hereunder, Customer hereby agrees to pay Prophecy the fees, costs and expenses set forth on the Order Form and Order Confirmation.

2.2 Payment. Fees are due and payable by Customer not more than thirty (30) days from receipt of the Prophecy invoice with payment schedule agreed in the Order Form. Nothing in this Agreement shall be deemed to imply an agreement for the completion of Professional Services for a fixed price. Prophecy will earn and be paid by Customer for actual time worked and expenses incurred in connection with the performance of Professional Services. All fees generated from Professional Services performed by Prophecy shall be considered earned as work is performed. All fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided. Delinquent payments shall be treated and assessed interest as set forth in the Terms.

2.3 Expenses. Customer shall reimburse Prophecy for reasonable travel, lodging and meal expenses, and such other costs and expenses as Prophecy may incur in connection with the performance of Professional Services. Prophecy will provide documentation related to expenses upon written request therefor.

3. Termination. Either party may terminate the services provided under this Addendum upon ten (10) days’ notice to the other party. All outstanding and accrued fees shall be immediately due and payable upon any such termination.